Plaintiff Company (Law Firm Barun, Attorneys Han-chul et al., Counsel for plaintiff-appellant)

Defendant (Law Firm KEL, Attorneys Kim Gyeong-won, Counsel for the defendant-appellant)

April 30, 2009

Seoul Central District Court Decision 2007Gahap15573 Decided October 19, 2007

1.The judgment of the first instance shall be modified as follows:

A. With respect to the case of California, California, California Court BS70003 between the plaintiff and the defendant, the compulsory execution based on the judgment of the court of first instance rendered on June 25, 2001 shall be permitted to the extent that the above court orders payment of 10% per annum from August 2, 2007 to the day of complete payment of 8,179,545.42 U.S. dollars ( principal) and 3,376,421.95 US dollars (damage for delay) and the above 8,179,545.42 US dollars ( principal) among them.

B. The plaintiff's remaining main claims are dismissed.

2. The total costs of the lawsuit shall be twenty minutes, and one of them shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

3. The above paragraph 1(a) may be provisionally executed.

1. Purport of claim

A. The primary purport of the claim

With respect to the case of the State Court of the first instance of California, California, Luxembourg, Luxembourg,07003 between the Plaintiff and the Defendant, compulsory execution based on the judgment rendered on June 25, 2001 by the above court shall be permitted to the extent that the above court orders payment of the amount calculated by the rate of 10% per annum from July 26, 2002 to the date of full payment.

B. Preliminary purport of claim

The defendant shall pay to the plaintiff 7,655,007.26 US$ and 5% interest per annum from July 26, 2002 to the day of complete payment.

2. Purport of appeal

The judgment of the first instance is revoked, and the plaintiff's claim is dismissed.

1. Basic facts

The following facts are not disputed between the parties, or can be acknowledged in full view of Gap evidence of Nos. 1 through 43 (including branch numbers if there are branch numbers; hereinafter the same shall apply) and Eul evidence of No. 25, and the purport of the whole pleadings as a result of the party representative examination.

A. Lending money between the plaintiff and the defendant

On March 3, 200, the Plaintiff, a U.S. company established around 1994, as security the Defendant’s housing located in California (9840 Dolod, Los Anges, CA, 90210; hereinafter “ Denb housing”) 220,000 dollars, ② USD 50,000 on March 14, 200, ③ USD 450,000, ④ USD 750,00 on June 9, 200, ⑤ USD 90,000 on June 20, 200, ⑤ USD 60,000 on December 12, 200, 70, 90, 700, 60, 90, 700, 700, 100, 700, 700, 90, 200, 70, 90, 94, 25, 300.

B. The plaintiff's judgment against the defendant

○ On June 14, 2001, the Plaintiff: (a) signed by the Defendant at the first instance court of the first instance in California, California (Case No. 207003, Jun. 13, 2001; (b) approved that the Defendant’s obligation to the Plaintiff was USD 9,710,589.28 as of June 13, 2001; (c) issued a judgment ordering payment of interest at the above principal and interest rate (10% per annum); (d) recognized the jurisdiction of the above court; and waiver of the right to appeal; and (e) declared that the Defendant’s written approval was read; (c) signed by the Defendant to the effect that the Defendant’s consent was valid; and (d) signed by the Defendant’s attorney No. 2161, Jun. 13, 2001; and (e) signed the Defendant’s letter of approval to the effect that the above attorney No. 501, Mar. 21, 201.

○ In accordance with the provision of Articles 1132 through 1134 of the California Civil Procedure Act (the provision of the original text is attached to attached Form 2), which provides the requirements for the approval judgment on June 25, 2001, the lower court sentenced “the Defendant shall pay the Plaintiff the principal amount of USD 9,710,589.28 and interest at a rate of 10% per annum from June 14, 2001 (hereinafter referred to as “the instant judgment”). The instant judgment became final and conclusive at that time.

C. The defendant's reimbursement

Around March 29, 2002, the Defendant agreed to divorce with Nonparty 1, his wife, and in relation to the division of the Defendant’s property, the Defendant and Nonparty 1 agreed that the said right of property is owned by the Defendant while the Plaintiff’s security was maintained, and the said Denmark Housing shall be owned by Nonparty 1 while the Plaintiff’s security right was extinguished. The Plaintiff consented thereto.

After ○○, around May 2002, the Defendant owned Bosch Rexroth housing by Nonparty 1 and agreed to change the ownership of Denmark housing to that of the Defendant. The Plaintiff also agreed to the above change agreement upon the Defendant’s request. However, as to whether Bosch Rexroth has extinguished the existing Plaintiff’s security right on the house and transferred it to Nonparty 1, the ownership of Bosch Rexroth housing was transferred to Nonparty 1 in the state where the Plaintiff’s security right was established without express agreement between the Plaintiff and Nonparty 1.

○ The Plaintiff was provided by the Defendant as payment in lieu of the Defendant’s debt obligations based on the instant judgment, on April 16, 2002, with Dmers house equivalent to USD 680,000,000,000,000 from July 25, 2002.

In addition, at the time of Nonparty 1’s exchange with Denmark Housing, Nonparty 1 agreed to terminate the security right that was created by Nonparty 1, on behalf of the Defendant, to pay the Plaintiff the amount of money equivalent to the difference between the value of Denmark Housing and the amount of the Defendant’s credit at the time of Nonparty 1’s exchange with Denmark Housing. Nonparty 1 paid USD 732,576 to the Plaintiff around August 1, 2007.

If ○○ Plaintiff’s repayment of the money received by ○○ is made in sequence to the principal and delayed payment as shown in attached Form 1. In addition, as of August 1, 2007, 8,179,545.42, the remaining amount of the Plaintiff’s remaining claim against the Defendant would remain USD 3,376,421.95, as of August 1, 2007.

2. Judgment on the plaintiff's claim

According to the above facts, the California court, in the interpretation of laws and regulations of the Republic of Korea, recognized the international jurisdiction of the case of this case in accordance with the jurisdiction agreement between the plaintiff and the defendant, and the defendant, prior to the pronouncement of the judgment of this case, directly signed the approval document and the confirmation document of this case to the purport that he heard the explanation of the procedure and validity of the approval judgment system of the California Civil Procedure Act of California and directly signed the contents of the judgment of this case. Thus, the right to defense of this case is sufficiently guaranteed.

Furthermore, in California in the U.S., the Uniform Foreign Monetary Judgment Approval Act (Uni Form Moneoneone's Judism Act) has been adopted in California in the U.S., and the above Act is generally the same purport as Article 217 of the Civil Procedure Act of the Republic of Korea, Articles 26 and 27 of the Civil Execution Act of the Republic of Korea, and Articles 26 and 27 of the Civil Execution Act of the Republic of Korea, and the requirements for recognition of Korean judgments do not lose balance, and are not excessive compared to those prescribed in the Republic of Korea, and there is no substantial difference in important points, so the judgment of this case satisfies the requirements for mutual guarantee

Therefore, the compulsory execution of the judgment of this case in the Republic of Korea shall be permitted unless there are special circumstances to see that recognizing the validity of the judgment of this case is contrary to the good morals and other social order of the Republic of Korea. Therefore, the compulsory execution of this case shall be permitted to the extent that the compulsory execution is permitted to pay the remaining principal of USD 8,179,545.42 and USD 3,376,421.95 and principal of USD 8,179,545 and USD 10% per annum from August 2, 2007 to the date of full payment.

3. Judgment on the defendant's assertion

A. (1) The defendant's assertion

On April 26, 2001, the Plaintiff did not require the Defendant to pay a debt, and did not set up a security against the said Bosch Rexroth, Den, and Dmers housing. After receiving the instant judgment, the Plaintiff transferred USD 5 million to the Defendant, following the Defendant’s preparation for divorce with Nonparty 1, in collusion with the representative director of the Plaintiff, who is the Defendant’s interest relationship, in preparing for divorce with Nonparty 1, prepared a false loan certificate for the purpose of concealing or evading the execution of property from Nonparty 1, and received the instant judgment based on a false loan certificate that is null and void as such, permitting the execution of the instant judgment contradicts the public order and good morals of the Republic of Korea.

(2) Determination

(A) According to the purport of Eul's evidence No. 10 and the whole arguments, the plaintiff sent USD 5 million to the defendant on September 19, 2001 after the judgment of this case was rendered. The above evidence and the whole arguments are shown as follows.

According to the statements in the evidence Nos. 9 through 16, the plaintiff submitted a document proving that he provided the above money to the defendant at the time of the above lending.

As above, the Defendant denied the Plaintiff’s assertion while submitting the evidence No. 21 by asserting that the money that the Plaintiff claimed as a loan is a distribution of profit to the Defendant. However, in light of the form of preparation and the fact that the person indicated in the name of the preparation of the evidence No. 21 denies the preparation (Evidence No. 34), it is suspected that the authenticity is established, and there is no objective material to acknowledge the Defendant’s assertion otherwise.

According to the facts stated above, the defendant directly signed the letter of approval or confirmation of this case, and it is recognized that the defendant provided the plaintiff with a Ramera and Denb housing with a considerable value for the repayment of claims pursuant to the judgment of this case in kind. If the defendant prepares a false loan certificate on the ground as alleged by the defendant, it seems that there is no special reason to provide the plaintiff with each of the above houses.

If the Plaintiff prepares a false loan certificate as alleged by the Defendant, then the Plaintiff appears to have claimed the return of each of the above houses against the Plaintiff after the divorce agreement with Nonparty 1 was reached. However, there is no evidence to prove that the Defendant claimed the return of the above house against the Plaintiff or exercised its rights.

According to the evidence Nos. 27, 40, and 43, the plaintiff reported the plaintiff's income to the defendant in the tax office on April 15, 2001, which was notified by the non-party 1 of divorce, to the tax office prior to April 26, 2001, on the premise that the plaintiff had a claim for loans of USD 6,715,165 against the defendant. Thus, the plaintiff's claim for loans against the defendant can be ratified as authentic.

According to the statement of No. 2 and the result of the Plaintiff’s personal examination, on May 2002, the Plaintiff appears to have participated in the process of agreement on the issue of exchanging Denmark housing, which was decided to be owned by the Defendant and Nonparty 1, among the property division due to divorce between the Defendant and Nonparty 1 on May 2002, and the Defendant’s ownership. If the Plaintiff did not have a real claim against the Defendant, it seems that there was no reason to participate in the modified agreement between the Plaintiff and the Defendant after the divorce agreement between the Defendant and Nonparty 1.

According to the evidence Nos. 18 and 2 of the plaintiff's certificate Nos. 18 and 2, the plaintiff tried to enforce the plaintiff's forced execution of the non-party 1 in accordance with the above modified agreement of June 25, 2004. Accordingly, the non-party 1 also filed a lawsuit claiming a U.S. court to extinguish the security right to the plaintiff's Bosch Rexroth housing. At that time, the non-party 1 asserted that the plaintiff's forced execution of the non-party 1's Bosch Rexroth housing was unfair in light of the principle of the statement. Accordingly, there is no evidence to prove that the defendant clearly raised objection against the plaintiff's forced execution of the non-party 1's Bosch Rexroth housing in accordance with the modified agreement.

(B) Taking into account all the above circumstances, even based on all evidence submitted by the Defendant, it is difficult to view the judgment of this case as based on a false conspiracy and invalid loan certificate as alleged by the Defendant, and there is no other evidence to acknowledge it. Therefore, the Defendant’s assertion seeking the denial of judgment of execution based on the judgment of this case on the premise of this, is without merit.

B. (1) The defendant's assertion

In the absence of any assistance to the legal meaning and validity of the subject judgment, the Defendant signed the instant written approval and confirmation without reading the contents thereof, and the Defendant’s agent was also appointed by the Plaintiff, and the subject judgment is null and void.

(2) Determination

On June 13, 2001, the defendant signed the letter of approval of this case and the confirmation document of this case and signed directly by the defendant on June 14, 2001, the defendant's attorney, a representative of the defendant, signed the letter of approval of this case and the confirmation document of this case as recognized above. According to Gap's evidence 19, when preparing the letter of approval of this case and the confirmation document of this case, the defendant's attorney sent to the defendant a document explaining the purport of this case's letter of approval of this case and the confirmation document of this case, and as of June 13, 2001, the defendant signed it without the defendant's assistance of counsel, it cannot be viewed that the defendant signed it without reading the contents of the letter of approval of this case and the confirmation document of this case without the defendant's assistance.

Furthermore, as to whether the defendant's representative was appointed by the plaintiff, all the evidence submitted by the defendant alone is insufficient to recognize it, the above argument by the defendant is without merit.

C. (1) The defendant's assertion

The plaintiff, including the judgment of this case on March 28, 2002, prepared a letter of waiver of rights to waive all rights arising from the transactions between the plaintiff and the defendant, and notarized, compulsory execution according to the judgment of this case shall be denied.

(2) Determination

According to the purport of Gap evidence No. 2 and the whole pleadings, the plaintiff is deemed to have prepared a written waiver of rights (Evidence No. 1) as of March 28, 2002. However, according to the evidence No. 2-1, No. 2, and No. 1-2, each of the above waivers of rights is the purport that the plaintiff should waive all rights and not exercise the right against the non-party No. 1's property in relation to Denmark's originally transferred to the non-party No. 1 in the course of division of property among the divorce agreement between the defendant and the non-party No. 1, and the non-party No. 1 also prepared a written waiver of rights (Evidence No. 2-2) to waive all claims against the plaintiff against the non-party No. 1.

D. (1) The defendant's assertion

The plaintiff tried to enforce compulsory execution against the defendant and the non-party 1 based on the judgment of this case, but the court of first and second instances accepted the claim that the loan certificate prepared by the defendant to the plaintiff is null and void and dismissed the plaintiff's claim. Since the judgment became final and conclusive, the plaintiff's claim of this case seeking compulsory execution based on the judgment of this case is unreasonable.

(2) Determination

(A) The fact that the Bosch Rexroth Housing was originally owned by the defendant at the time of the divorce agreement between the defendant and the non-party 1, but thereafter, the agreement to change the ownership of the non-party 1 was recognized as above, and the following facts are acknowledged according to the statement in the Eul evidence No. 2.

around June 2004, the plaintiff attempted to enforce a compulsory execution with the security right of the plaintiff which was established in the house of Bosch Rexroth. However, on August 2004, the non-party 1 was issued by the U.S. court to deny the validity of the compulsory execution warrant issued in relation to the house of Bosch Rexroth.

○ filed a claim with the court of first instance in the United States, claiming the approval of the Plaintiff’s security interest in Bosch Rexroth housing.

○ Nonparty 1 filed a separate claim with the above court against the Plaintiff’s above claim and against the Plaintiff’s security right to the Bosch Rexroth Housing that the security right has ceased to exist in accordance with the doctrine of Spanish.

On October 25, 2004 and January 7, 2005, the above court rendered a favorable judgment against the non-party 1.

○○ filed an appeal with the appellate court on June 27, 2006 against each of the above judgments, but the appellate court also rendered a decision dismissing the Plaintiff’s appeal on the ground that the first instance court’s judgment, as the same conclusion, was justifiable, on the ground that the Plaintiff’s security right to the Plaintiff, which was established in Denban Housing, was not known to Nonparty 1, and the Plaintiff did not consent to the alteration agreement with the Defendant. At the time of the said alteration agreement, it is necessary to protect Nonparty 1’s trust, which judged that the Plaintiff renounced the security right to the Bosch Rexroth Housing at the time of the said alteration agreement, the Plaintiff’s assertion of security right to the Bosch Rexroth Housing was in violation of the non-party 1’s non-party 1’s non-party 1’s consent to the alteration agreement.

(B) However, considering the fact that the decision of this case was established with respect to loans between the plaintiff and the defendant, the validity of the decision of this case cannot be deemed to have been entirely denied due to the decision of the above appellate court which did not recognize the plaintiff's security right to the Bosch Rexroth transferred to the non-party 1 as above, and there is no evidence to acknowledge it differently, and therefore, the defendant's above assertion based on this premise

E. (1) The defendant's assertion

Even if the judgment of this case is valid, the defendant paid USD 24,115 on April 12, 2001 to the plaintiff, ② on April 26, 2001, ② 223,844.28 on April 26, 2001, ③ on April 2, 2002, Ramers house and 5,400,000 US dollars to the plaintiff, ④ on July 18, 2002, and ④ on August 18, 2002, Nonparty 1 paid to the plaintiff the amount of USD 732,576 on behalf of the defendant, which the plaintiff agreed to pay to the plaintiff while disposing of Mabrid house, and ④ around August 2007, the plaintiff returned the defective goods to the plaintiff, and there is no additional amount to be paid by the defendant to the plaintiff.

(2) Determination

With respect to the Defendant’s assertion that USD 24,115 on April 12, 2001 and USD 223,844.28 on April 26, 2001 were repaid to the Plaintiff, there is no evidence to prove that the Defendant paid the Plaintiff additional amounts to the Plaintiff, in addition to USD 3,823,84.28, the evidence submitted by the Defendant alone, which the Plaintiff was repaid by the Defendant prior to the establishment of the instant judgment, was not sufficient.

Since the Defendant had already deducted the amount of payment in kind in Dmera and Denb and the amount of payment in subrogation by Nonparty 1 as indicated in the calculation formula in attached Form 1., it is reasonable to not additionally deduct, otherwise, there is no counter-proof, and on the other hand, it is insufficient to recognize that the Defendant transferred the Masch Rexroth housing to the Plaintiff, and there is no other evidence to acknowledge otherwise.

There is no evidence to acknowledge that the Plaintiff is liable to pay to the Defendant for the return of the brush.

Therefore, this part of the defendant's argument is without merit.

F. (1) The defendant's assertion

Even if the loan certificate written by the defendant is legitimate, the plaintiff and the defendant agreed to apply the delayed compensation rate of 5% per annum, so the delayed compensation rate under the judgment of this case shall be changed to 5% per annum.

(2) Determination

According to Gap evidence Nos. 1-5, 8, and 10, the plaintiff proposed on July 11, 2001 that the defendant will reduce the delayed compensation rate recognized in the judgment of this case by 5% per annum if the plaintiff made a payment in full of Dmeras, Denmark, Ssch Rexroth housing and the house house house, etc., but the defendant did not consent to the reduction. The plaintiff can only recognize the fact that the defendant was issued a writ of execution under the judgment of this case on July 31, 2001, and there is no evidence to prove that the agreement between the plaintiff and the defendant was concluded on the reduction of the delayed compensation rate by 5% per annum under the judgment of this case. Thus, this part of the defendant's assertion is without merit.

G. (1) The defendant's assertion

There was an agreement between the Plaintiff and the Defendant that the Defendant would not implement compulsory execution based on the instant judgment, on the following grounds: (a) the Defendant made a false loan certificate to the Plaintiff; and (b) the instant judgment was sentenced only to the divorce case between the Defendant and Nonparty 1 for the purpose of less paying consolation money to Nonparty 1.

(2) Determination

The loan certificate of this case was established through a genuine monetary transaction between the plaintiff and the defendant, and the facts that the subject decision of this case was pronounced on the basis of such monetary transaction between the plaintiff and the defendant are as recognized earlier. Therefore, the defendant's assertion on this different premise is without merit.

H. (1) The defendant's assertion

In light of the fact that the judgment of this case was sentenced to the use of a divorce case against the non-party 1 without actual monetary transactions with the plaintiff, and that the plaintiff did not perform compulsory execution based on the approval judgment of this case until April 2004, and that the amount of the approval judgment of this case is reasonable and its execution has a significant impact on the defendant, it constitutes abuse of rights to claim compulsory execution based on the approval judgment of this case.

(2) Determination

When a judgment becomes final and conclusive, the existence of a claim subject to res judicata has become final and conclusive, and its content has to be executed in accordance with the principle of trust and good faith. However, compulsory execution based on a final and conclusive judgment should not be allowed if it constitutes abuse of rights. Thus, in order for the contents of a final and conclusive judgment to constitute abuse of rights due to a violation of substantive legal relationship, etc., the execution by the judgment constitutes abuse of rights. In full view of all the circumstances such as the nature and contents of the right, the circumstances leading up to the establishment and execution of the judgment, and the impact on the parties, etc., the execution by the final and conclusive judgment should be deemed to be considerably unfair and clearly unfair execution based on the final and conclusive judgment to allow the other party to execute the final and conclusive judgment, and the facts that the judgment was rendered based on the real money transaction between the plaintiff and the defendant should be acknowledged as constituting abuse of rights. Thus, this part of the defendant's assertion cannot be accepted.

4. Conclusion

Therefore, the plaintiff's primary claim of this case is justified within the scope of recognition of the above "paragraph 2," and the remaining claims are dismissed as it is without merit. Since the judgment of the court of first instance is unfair with some different conclusions, it is so decided as per Disposition by accepting part of the defendant's appeal and changing the judgment of the court of first instance.

(1) The plaintiff's conjunctive claim of this case was transferred to the trial in accordance with the principle of no appeal by the defendant. However, according to the reference documents submitted by the plaintiff on July 8, 2009 after the closing of argument of this case, even if the plaintiff's primary claim is not accepted in whole, it is recognized that the plaintiff did not have an intention to seek a decision on the conjunctive claim within the extent not accepted in the primary claim. Thus, the plaintiff's conjunctive claim of this case is not judged separately for the conjunctive claim of this case)

[Attachment 1 and 2]

Judges Cho Young-hee (Presiding Judge)